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Oral assessments at university: the rules

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Last updated 14th June 2022 (part update 18th April, 2024).

Table of page contents

Introduction

This page looks at the actual EqA rules about oral assessments by universities (and FE colleges). Some parts of the page can get quite technical.

For an easier introduction, start with Oral assessments, and assessed presentations, which includes concrete examples of how assessments might be altered.

A student who stammers has the rights discussed on this page if their stammer is a “disability” as defined, which it very often will be. There are different rules for Northern Ireland.

Don’t think only of reasonable adjustments

A key point to understand is that Equality Act (EqA) protection is not limited to reasonable adjustments. That is particularly important since universities are not required to make reasonable adjustments to competence standards – such as some assessment criteria. Their reasonable adjustment duty applies only to how any competence standards are assessed, not to what competence standards are assessed. But their other EqA obligations are not limited in this way. Universities are still liable under other EqA provisions if they cannot justify the discriminatory effect of marking people down due to effects their stammer or other disability.

A university’s assessment criteria for an assessed oral presentation in a history course include verbal (ie oral) fluency, and/or lack of hesitation. The university agrees to give a student who stammers extra time, but not to alter these criteria. It says they are competence standards which are not subject to the reasonable adjustment duty.

The university also refuses the alternative of a written presentation because then verbal fluency and hesitation could not be assessed. (Alternatively, if the presentation was in writing the student would lose marks for those criteria.)

It is correct that the reasonable adjustment duty does not apply to competence standards themselves, though it does apply to the process by which competence standards are assessed (below Reasonable adjustments: exception for competence standards). Therefore extra time for the presentation is arguably a reasonable adjustment, on the basis that it is an adjustment to the process of assessing verbal fluency etc. But if oral fluency and lack of hesitation are “competence standards” as legally defined (the student might dispute whether they are), a written assessment would not be a reasonable adjustment as it would involved disapplying the competence standard.

However under s.15 EqA (below), discrimination arising from disability, the university also has an obligation not to mark the person down for something which is a consequence of their disability – for example dysfluency, hesitating – unless the university can show that doing so is a proportionate means of achieving a legitimate aim. That includes balancing the importance of the aim against its discriminatory effect. I suggest a university will normally have significant difficulty trying to justify assessing verbal fluency or lack of hesitation in an oral assessment, where these are due to a stammer: below Some points on justification under ss.15 and 19. Also if a university accepts that these should not be assessed, giving the presentation in writing (if the student wishes) seems likely to be a reasonable adjustment.

Assessment criteria of verbal fluency, and/or lack of hesitation are also likely to be unlawful indirect discrimination contrary to s.19 EqA (below) unless the university can show the criteria are justified: below Some points on justification under ss.15 and 19. Indirect discrimination does apply to competence standards.

(Direct discrimination (below) might perhaps also be relevant but that is unclear.)

For a more fully worked example, see Example: Assessed presentation at university. This may all be subject to the Curriculum defence (below) but I would argue that does not apply.

So do ask for reasonable adjustments (below), but not only that. Universities may in any event be reluctant to alter assessment criteria or learning outcomes etc. The exception for competence standards gives them a legal argument for refusing to do so by way of “reasonable adjustment”. However I suggest be clear that other provisions of the Equality Act require even their competence standards to be non-discriminatory. If you want the university to reconsider what is being assessed, I suggest emphasise that the university also has EqA obligations under s.15 (below, discrimination arising from disability, below) and s.19 (below, indirect discrimination). (In a claim against a professional exam body, only s.19 can be used to challenge a competence standard, but that limitation does not apply to claim against a university or other body within s.91 EqA.)

S.15 EqA is also useful in the sense that it enables a student to challenge the actual decisions made by a university in marking an exam, rather than just what adjustments should have been made in advance (subject to Technical note: Can s.15 justification test require exceptions to a competence standard?). A Court of Appeal decision on this – in the context of dismissal from employment – emphasises that there may well be a breach of s.15 even if there is no failure to make reasonable adjustments: see Reasonable adjustment rules: employment>Also consider a claim for discrimination arising from disability (s.15) and Griffiths v DWP>When is s.15 claim more appropriate than reasonable adjustments?

This may all be subject to the Curriculum defence (below), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

Brief points on justification under ss.15 and 19

The university has a defence to a s.15 claim (below) if it shows that treating the person unfavourably – such as marking them down – as a result of something arising from the person’s disability was a proportionate means of achieving a legitimate aim (justification). It is for the university to prove this.

The justification defence to a s.19 claim below, ie indirect discrimination, is similar. Here it is clearer, though, that the university must justify the provision, criterion or practice (PCP) which has the discriminatory effect, such as the competence standard or assessment criteria generally, rather than the unfavourable treatment of the individual.

Whether this justification defence succeeds involves a balancing exercise by the County Court, if the claim goes to court. The court would consider particularly how important the university’s aim was, could it have been achieved by alternative less discriminatory means, and did the aim outweigh the discriminatory effect.

The university should seek to achieve its aim in a way that minimises discriminatory effects. But remember also that the university’s aim itself can potentially be challenged, as being disproportionate when balanced against the detriment to disabled people.

There is more technical detail below in Technical note: Justification under ss.15 and 19 EqA.

I suggest as follows (though the courts will have to decide):

  • There are only limited cases where a university is likely to be justified in insisting on assessments being oral and assessing oral skills, if the student would prefer it to be in writing. Examples of these exceptions are foreign language oral assessments, and performing arts courses.
    • In University of Bristol v Abrahart, involving an undergraduate physics course, the univerisity’s insistence on oral assessments contributed to a student committing suicide. The university argued that a core competence of a professional scientist was ability to present results orally. However, the issue there was whether the university’s competence standard required oral communication. The court held on the evidence that it did not. The question whether a competence standard requiring oral communication was justified therefore did not arise. I suggest it would be difficult for the university to show justification of that.
  • Insisting on an oral assessment is more likely to be justified in some professional exams, eg for doctors, than on a normal university course.
  • Where a university student does do an oral assessment, a university may find it difficult to justify marking someone down for effects of their stammer – at least where those effects can be distinguished as such (below Discrimination arising from disability; Knowledge of disability).
  • Even where effects of the stammer are hidden, it may be reasonable for the university to make adjustments to minimise the effects, such as allowing a period after an oral assessment for the student to write up anything they were unable to say.
  • When considering different kinds of disability, stammering is often forgotten about. However, the Abrahart case may raise awareness, and also support legal arguments, on the need to look critically at whether oral assessments are justified: below How the Abrahart case may help.

This may all be subject to the Curriculum defence (below), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

Official guidance

Universities, FE colleges etc

I talk of “universities” on this page but the same rules apply to further education colleges and to other further and higher education. See University and FE: the rules>Technical note: What institutions are covered?

Under s.91(3) EqA these rules also apply to non-students (below) as regards qualifications offered by universities and FE colleges. However the reasonable adjustment duty for them is a bit different: below Reasonable adjustments: non-students.

Reasonable adjustment duty (s.20)

In summary, the reasonable adjustment duty applies to how the university assesses competence standards, but not to what competence standards it can assess. Even where the reasonable adjustment duty is excluded because a competence standard cannot be adjusted, a disabled student can rely on other rights under s.15 and s.19 Equality Act which have no exception for competence standards (above Don’t think only of reasonable adjustments).

Here I focus on exams and assessments. I discuss the reasonable adjustment duty more generally in relation to universities etc at University and FE: the rules>Duty to make reasonable adjustments.

Reasonable adjustments: Exception for “competence standards”

Generally universities have a reasonable adjustment duty if a provision, criterion or practice (PCP) applied by the university puts people with a particular kind of disability at a more than minor or trivial disadvantage: below Reasonable adjustments: anticipatory duty. However EqA Sch 13 para 4(2)(3) says this duty does not apply if the PCP is the application of a “competence standard”.

The effect is that the reasonable adjustment duty applies to how the competence standard is assessed, ie the process by which it is assessed, but not to what competence standards can be assessed (Technical guidance para 7.38, University of Bristol v Abrahart>Competence standards: Hight Court). A competence standard might include for example a university’s assessment criteria and/or learning objectives, though not all of these will necessarily be “competence standards”: see below What is a competence standard?

So if the competence standards being assessed are not specifically oral skills – eg a foreign language oral where the competence standards can only be assessed orally – it may well be a reasonable adjustment to do a written rather than oral assessment, if the student wishes. (Even if competence standards are specifically oral, there is still the question of whether under ss.19 and 15 the university can justify assessing them (above)). The Technical guidance gives an example of a reasonable adjustment the other way round, of allowing an oral format where the exam would normally be written:

Example: A law student has severe arthritis in her hands. When assessing her level of knowledge, it might be a reasonable adjustment to provide an oral exam or viva instead of a timed handwritten exam. However, there may be an overlap between a competence standard and any process by which an individual is assessed against that standard.
Para 7.38 Technical guidance, 2014.

There is more detail below, including on time limits: Technical note: Competence standards.

In any event, the most important point to bear in mind is that even where Sch 13 para 4(2)(3) excludes the reasonable adjustment duty, a disabled student can rely on their rights under ss.15 and 19 EqA (below), and these have no exception for the university’s competence standards: above Don’t think only of reasonable adjustments.

The reasonable adjustment duty may be subject to the Curriculum defence (below), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

Reasonable adjustments: Anticipatory duty

Subject to the exception for competence standards above, universities have a duty to make reasonable adjustments. This reasonable adjustment duty towards students is “anticipatory”, so universities should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself. (University of Bristol v Abrahart, at §157-161). This can make the duty wider than if the duty only required ad hoc adjustments. I discuss this “anticipatory” kind of reasonable adjustment duty in more detail at Reasonable adjustments by service providers, and see from para 7.19 of the EHRC’s Technical guidance.

Under this anticipatory duty, if a provision, criterion or practice (PCP) applied by or on behalf of the university puts disabled students – ie those with a particular kind of disability – at a more than minor or trivial disadvantage, in comparison with non-disabled people, the university is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage (EqA s.20(3) with Sch 13 para 3). There is no need for all students who stammer to be disadvantaged by the PCP; the legal test may be roughly whether they are more likely to disadvantaged than non-stammerers. As mentioned at that link, expert evidence may be helpful if the point is disputed. (Note that without discussing the issue, as it was not disputed, the High Court in University of Bristol v Abrahart, 2024, seems to have gone on the basis that it was enough for just the claimant to be at a substantial disadvantage: eg para 8 and 222(iv)(v) of the High Court decision.)

It is not enough for a university to take a minimalist approach of providing some access. The policy of the legislation is, so far as reasonably practicable, to approximate the access enjoyed by disabled students to that enjoyed by the rest of the public (see the cases cited at that link and para 7.3 of the EHRC Technical guidance).

Normally the burden of proof will be on the university etc to show the proposed adjustment is not reasonable: Reasonable adjustments by service providers: rules>Burden of proof. The High Court took this approach with a university in University of Bristol v Abrahart>Comments: Burden of proof.

The anticipatory nature of the duty gives rise to some uncertainties on how far the duty extends to ad hoc adjustments and takes into account individual circumstances. However it can be argued the duty is wide. In what is currently the main case on universities, University of Bristol v Abrahart 2024, the County Court – upheld by the High Court – very much took into account the individual circumstances. See further University and FE: the rules>Ad hoc adjustments and individual circumstances? and – in more detail but not limited to education – Ad hoc adjustment duty on service providers.

As well as applying to PCPs which put disabled people at a disadvantage, the reasonable adjustment duty (EqA s.20 with Sch 13) also extends to:

  • providing auxiliary aids and services (so far as reasonable) if but for their provision disabled people would be put at a disadvantage, and
  • physical features of premises.

There is technical uncertainty on the test for whether the individual claimant has suffered (or may suffer?) sufficient detriment: below Reasonable adjustments: Detriment.

There are some examples of adjustments, by De Montfort University – Working with students who stammer (pdf on archive of De Montfort University website.

(Note: The reasonable adjustment duty is probably anticipatory as regards university exams and assessments for students, albeit there may be some doubt on that: see below Technical note: Is reasonable adjustment duty anticipatory as regards exams? However, if that duty is not anticipatory, it is no great problem. The university would still have a reasonable adjustment duty but focused on the individual, as outlined below for non-students. Also the reasonable adjustment duty on professional exam bodies is not anticipatory.)

Reasonable adjustments: Knowledge

In a reasonable adjustment claim, the EqA contains no express defence for a university which did not know of the disability (unlike s.15 below), apart from a special rule if the student has made a confidentiality request.

However, knowledge is likely to be relevant. In University of Bristol v Abrahart, 2024, the High Court said what the university “knew or ought to have known about the student or prospective student will be relevant to the question whether it was reasonable to take a given step or steps”. This issue has yet to be considered by higher courts, but they may well uphold that conclusion.

Also, if you want a reasonable adjustment, in practice it obviously makes sense to make sure the university knows about the stammer, its effects in the context of the oral assessment (particularly in what ways will you be put at a disadvantage), and if possible what adjustments you would like.

See further Universities: Knowledge of disability>Reasonable adjustments.

Reasonable adjustments: Detriment

To claim for reasonable adjustments, the student probably has to show that they as an individual suffered a detriment, or at least there was a real prospect they would suffer a disadvantage. The technical test is unclear. Often though it should not matter in practice. See Detriment to claimant in anticipatory reasonable adjustment claims, including the section on Education providers.

As to whether just being marked down is a detriment (if that is needed) if one still gets the same grade etc, see above S.15: Wide scope.

Reasonable adjustments: non-students

There is also a (non-anticipatory) reasonable adjustment duty for non-students taking university qualifications, subject to the exception for competence standards (above). Where a provision, criterion or practice (PCP) of the university puts a particular disabled exam candidate at a substantial (ie more than minor or trivial) disadvantage in comparison with persons who are not disabled, the university is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage. (EqA s.20(3), Sch 13 para 3(3)(c)(iii), 3(4)(d)&(e), 4(1)). Again, as well as adjusting PCPs, there are also duties regarding provision of auxiliary aids and services, and physical features.

Apart from there being no “lack of knowledge” defence (see next paragraph), the detailed rules should be essentially the same as the reasonable adjustment duty on employers (Reasonable adjustment rules: employment) and on professional exam bodies (Professional exams>Reasonable adjustments: process for assessing a competence standard). Like the duty on employers and professional exam bodies, the duty for non-students is focused on the individual disabled person rather than being anticipatory (above).

Like for students, the EqA here contains no express defence for a university which did not know of the disability (above Reasonable adjustments: Knowledge). The position is unclear, but a court seems unlikely to hold a university liable if it did not know of the disability having taken all reasonable steps to find out.

Even though the duty owed to non-students is individual rather than anticipatory, it could be argued that the Public Sector Equality Duty (PSED) requires the university to take disability into account in advance, and that this PSED is relevant in deciding what is “reasonable” under the reasonable adjustment duty. Also, could it be relevant in a claim by a non-student – in deciding what the university should reasonably have done – that as regards any students taking the same exam the university should have considered different types of disability in advance, given its anticipatory duty to students?

The other types of EqA claim (such as s.15 below) are also available to non-students as regards qualifications: below Non-students and qualifications.

Discrimination arising from disability (s.15)

Whenever a student is marked down for something which resulted from their stammer – for example dysfluency, hesitating, taking longer, saying less, circumlocuting or whatever – s.15 EqA is potentially relevant. Provided the university knows (or could reasonably be expected to know) of the disability, it seems the university is liable under s.15 EqA unless it can show its action is justified as being a proportionate means of achieving a legitimate aim.

It is no defence that the university saw the stammer as irrelevant and that they would have given the same marks to anyone else who hesitated or took longer.

S.15 may be subject to the Curriculum defence (below), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

S.15: Wide scope

S.15 can apply if a university treats a disabled person unfavourably “because of something arising in consequence of” their disability. There may well be more than one way to analyse how s.15 applies to an oral assessment. However one way is that the “unfavourable treatment” is marking the student down, and this was done because of hesitations (for example) which arose in consequence of the person’s stammer. Whether something “arises in consequence of” the disability is interpreted widely – there may be a chain of causal links rather than a direct link.

Para 9.7 of the Technical guidance, 2014, cites “being given lower marks” as one example of a “detriment” for the purposes of victimisation. “Detriment” is a similar concept to “unfavourable treatment”. Does the marking down need to lead to a lower grade or similar? Perhaps in some cases. The court may look at whether the claimant can reasonably say they would have preferred not to have been marked down, similar to the test for direct discrimination: Direct discrimination>What is “less favourable”?

University of Bristol v Abrahart, High Court, 2024
The County Court considered that a student (Natasha) being marked down for an oral assessment was unfavourable treatment within s.15 EqA. The alleged unfavourable treatment, accepted by the court, was “with respect to the marking down of her oral assessment work/imposition of penalty marks (with which Natasha would be stuck unless somehow successful in pursuing a case of extenuating circumstances but would still result in a period of unfavourable treatment).” The County Court’s decision on this was not disputed when the unversity appealed to the High Court.
More: University of Bristol v Abrahart>Unfavourable treatment under s.15: County Court.

In Abrahart (though not a binding precedent) initially marking her down was seen as unfavourable treatment even though it might later be reversed by an application for extenuating circumstances. (Further, the High Court seemed supportive of – and in any event upheld – the County Court’s decision that allowing a retrospective application for extenuating circumstances was not sufficient reasonable adjustment in that case: University of Bristol v Abrahart>Continuing to mark her down.)

S.15: Can the university show justification?

If the student is marked down (or otherwise treated unfavourably) “because of something arising in consequence of” the disability, the university is liable under s.15 unless it shows it did not have actual or constructive knowledge of the disability (below), or that marking the student down was a proportionate means of achieving a legitimate aim (justification).

On the test for justification in the context of university exams, see:

One technical point I’ll mention here: Normally, when considering justification under s.15, the court focuses on whether the particular unfavourable treatment of the claimant was justified. However, if the court accepts that the unfavourable treatment was required by a competence standard (which is excluded from the reasonable adjustment duty), the court may perhaps focus on whether the competence standard itself was justified, rather than whether an exception should have been made from it: see below in the Technical note Can s.15 justification test require exceptions to a competence standard?

S.15: Knowledge of disability

The university has a defence under s.15 if shows it did not know, and could not reasonably have been expected to know, that the person had the disability. This will rarely be the case as regards stammering. See Universities: Knowledge of disability>Discrimination arising from disability. A few points in brief:

In practice it makes sense to try to ensure that the university actually knows of the disability.

S.15 and professional exam bodies

Compared with universities, the scope to claim under s.15 is more limited in a claim against a professional exam body (“qualifications body”). Under s.53(7) EqA, s.15 does not apply to the application of a competence standard by a qualifications body. But s.19 below can apply to this.

Indirect discrimination (s.19)

There can be indirect discrimination contrary to s.19 EqA if, broadly, the university applies a provision, criterion or practice (PCP) to people generally, but the PCP puts people with a particular disability (including the claimant) at a particular disadvantage in comparison with people who do not have that disability. However, the university has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim: below Indirect discrimination: Justification.

“Provision, criterion or practice” (PCP) is a broad concept. For example it could include assessment criteria, learning outcomes and competence standards. Assessment criteria such as verbal fluency or lack of hesitation are obvious examples of PCPs which are more likely to disadvantage people who stammer or those with a speech impairment, and may well be difficult to justify. Indirect discrimination, along with s.15 above, gives protection against assessment criteria like these even if they are competence standards excluded from the reasonable adjustment duty (above). Anything requiring an oral assessment also seems more likely to disadvantage people who stammer or those with a speech impairment.

A university’s assessment criteria for an oral asssement in a history degree includes oral fluency and lack of hesitation. The university refuses to change these criteria, saying its academic standards cannot be altered.

On a claim under s.19 EqA it is unlikely to be difficult to show that people who stammer or with speech impairments (see Indirect discrimination>”Same” disability) are more likely to have difficulty with these oral abilities. However as discussed at that link, expert evidence may be helpful if the point is disputed.

As to justification, assessment criteria of oral fluency and lack of hesitation seem very difficult for the university to justify, especially in a history degree where one would expect the student to be assessed instead on history.

Unlike on a reasonable adjustment claim, the exception for competence standards does not apply to the s.19 claim. The student is also likely to have a claim under s.15 EqA (above) for being marked down based on these assessment criteria.

For more detail see Example: Assessed presentation at university.

The university in that example will probably also insist that the presentation is oral rather than in writing, as its assessment criteria can only be assessed orally. The reasonable adjustment duty may or may not apply to that (are reasonable adjustments excluded even if the competence standard is unlawful?). However whether or not the reasonable adjustment duty applies, indirect discrimination (and indeed s.15 above) is likely to apply to the university’s refusal to allow a written presentation: see Example: Assessed presentation at university>Indirect discrimination.

S.19 may be subject to the Curriculum defence (below), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

Indirect discrimination: Justification

It is for the university etc to prove to the court that the PCP was justified, ie that the PCP was a proportionate means of achieving a legitimate aim. The court undertakes a balancing exercise. See in the context of university exams:

Also more generally Group test for objective justification of indirect discrimination?

Direct discrimination (s.13)?

Direct discrimination – less favourable treatment because of one’s disability (stammer) rather than because of one’s abilities – is often a difficult claim to make. A court may be slow to uphold a direct discrimination claim in this type of case. because there is no justification defence. The university has no opportunity to try and justify its marking or assessment criteria etc.

However paragraph 9.19 in the old 2007 Code of Practice is interesting:

9.19 A competence standard which results in direct discrimination is not a genuine competence standard and education providers who apply such standards will be acting unlawfully.

– A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is ‘speaking clearly in a customer services environment’. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful.

Say a university has assessment criteria which include verbal fluency, and/or lack of hesitation, for example. It may be arguable that the university is liable for direct discrimination, as in a sense it is assessing how far the person stammers. However a court would not necessarily agree!

If a university’s competence standard is itself direct discrimination, as in para 9.19 above, this could also contaminate the university’s defence to other types of EqA claim:

  • On the reasonable adjustment duty, if para 9.19 is right in saying it is not a competence standard, EqA Sch 13 para 4(2) does not apply and the so-called competence standard is subject to the reasonable adjustment duty: Reasonable adjustments: exception for competence standards (above).
  • On claims under ss.15 and 19 EqA above, an aim which is direct discrimination should not be a “legitimate” aim, so the university should not be able to base a justification defence on it. It may be different if there is a broader, sufficiently important and non-discriminatory aim which makes the assessment criteria necessary.

S.13 may be subject to the Curriculum defence (below), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

Non-students and qualifications

Normally s.91 EqA only applies to students and those applying to be students. However as regards qualifications, s.91 also applies to disability discrimination against non-students by universities and FE colleges. Various subsections of s.91 are worded to include a “disabled person” in connection with qualifications, without them having to be a student: s.91(3)(4)(5)(8).

So broadly the various types of EqA claim available to students, as discussed on this page, should also be available to non-students as regards qualifications. But it is worth checking the wording in s.91 (and in the reasonable adjustment provisions, link below) as to whether it does apply in the particular case.

A difference compared with students is that the reasonable adjustment duty for non-students is not anticipatory. It focuses on the individual disabled person. This duty is discussed above: Reasonable adjustments: non-students.

Curriculum defence

Curriculum defence: Summary

EqA s.94(2) says that students’ EqA rights against universities and FE colleges do not apply to “anything done in connection with the content of the curriculum”.

This defence allows universities to teach (and doubtless assess) a full range of ideas and materials even though some students may find them offensive. However, a university (in the Abrahart case below) has indicated that it may argue that this defence applies where a student had difficulty with the university’s oral assessments due to her disability.

I am not aware of any case where the courts have applied this defence to a disabled person having difficulty with an assessment due to their disability. I suggest the courts should not apply it in that situation. It is not what the defence is intended to cover.

Curriculum defence: Discussion

The defence in s.94(2) EqA is intended to ensure the EqA does not inhibit the ability of institutions to include a full range of issues, ideas and materials in their syllabus and to expose students to thoughts and ideas of all kinds, however controversial: see below Curriculum: EqA Explanatory Notes and guidance. For example, evolution can be taught in biology even if a student has creationist religious beliefs. Also, in a sociology course discussing attitudes to disability, a university would be entitled to include views which a disabled student may find insulting. However guidance (and the Asfar case below) says that the way in which the curriculum is taught remains subject to the EqA.

There is some indication – in Abrahart below – that universities may try to use this defence to argue they are entitled to assess oral skills, or particular oral skills, or perhaps are entitled to use particular methods of assessment (one example in the Explanatory Notes (below) refers to a requirement to use a computer to write essays). The argument would presumably be that this is part of their “curriculum”, so that the defence in s.94(2) applies, and the university does not have to show that what it is doing is justified or reasonable under the normal rules discussed on Oral assessments at university: the rules.

In University of Bristol v Abrahart (below), the university at the County Court stage eventually accepted that it could not argue this point on the facts of the case, because the County Court was bound by a previous High Court decision: below Curriculum: Cases. However the university indicated it would challenge the point if the case found its way to a higher court. It may or may not have been relevant that in Abrahart the court found nothing within the course literature to say that the assessed interviews and/or presentation could only be carried out orally.

Can a university get out of Equality Act liability just by including something in its course materials etc, or in whatever is meant by its “curriculum”, and saying that thing is therefore excluded from the EqA under s.94(2), where a disabled person has difficulty meeting the requirement due to their disability rather than just finding it offensive? I would argue not:

  • The literal wording of s.94(2) EqA is wide and might support an argument by a university that the defence is not limited to things which give offence, provided they are in the “curriculum”. The court would need to decide what is meant by “curriculum”.
  • However as discussed in the guidance (below Curriculum: EqA Explanatory Notes and guidance), this defence derives from a defence allowing schools to teach topics which some pupils or parents might find offensive due to their religion or belief. The examples in the EqA Explanatory Notes (and Technical guidance, though this may be less influential) are still of teaching or methods which some may find offensive or contrary to their beliefs. That is very different from a defence covering things which disabled people actually have difficulty doing. The High Court in Asfar below said the purpose of the curriculum defence was to enable a school to teach controversial material without being accused of contravening the Equality Act.
  • Allowing universities a defence (going beyond causing offence) for anything in the curriculum could drive a coach horses through Equality Act protection for disabled students. Just by including something in the “curriculum” a university could escape liability, even for direct discrimination, let alone reasonable adjustments. For example a university could set completely unjustified requirements in their “curriculum” to see things which no blind person could do, or to hear things which no deaf person could do etc.
  • If s.94(2) had the wide meaning, there would presumably be no point in the Equality Act including a specific exception for competence standards (as regards the reasonable adjustment duty), since competence standards would be exempt in any event under s.94(2) as part of the curriculum.
  • An exception wide enough to cover things which cause difficulty for disabled people seems likely to breach the European Convention on Human Rights (which is unaffected by Brexit). University education is within the ambit of Article 14, the anti-discrimination provision. Even if a university were not a public authority under the Human Rights Act, UK legislation – including the EqA – should if possible be interpreted to conform with the Convention (Enforcement of European Convention and HRA 1998).
  • Para 14.1 of the Technical guidance says that any exception to the prohibition of discrimination should generally be interpreted restrictively. There are doubtless cases one could cite to support this principle.
  • When considering the exclusion of competence standards from the reasonable adjustment duty under EqA Sch 13 para 4(2)(3), the High Court in University of Bristol v Abrahart agreed with the claimant’s lawyer that those provisions should be read on the basis that they enact an exception [ie narrowly?], and taking into account that the fact the exception doesn’t apply does not mean a given adjustment necessarily has to be made. The EqA permitted sensible conclusions on the facts of each case, notwithstanding a narrow reading of the exception. The same reasoning seems to apply to the curriculum exception.
  • In University of Bristol v Abrahart>Competence standards: High Court, the High Court seems to have accepted that the exception of competence standards from the reasonable adjustment duty should be interpreted narrowly as an exception, bearing in mind that even with a narrow reading, the EqA permits sensible conclusions on the facts of each case. The same logic seems to apply to the curriculum defence. (Also para 14.1 of the 2014 Technical guidance says that any exception to the prohibition of discrimination should generally be interpreted restrictively.)

If the curriculum defence did apply, there would be the question of where its limits lie. For example, does the defence apply to how something is assessed just because that is set out in course materials? In an assessment, does the fact that something (eg that assessment is oral) is not required by a “competence standard” mean it is unlikely to be part of the “curriculum”?

Note that the curriculum defence does not apply to professional exam bodies in any event. Even if, say, a competence standard causing difficulty for a disabled person were within the curriculum defence on a claim against a university, there might be still a s.19 EqA claim against the professional exam body whose competence standards the university is assessing.

Curriculum defence: EqA Explanatory Notes and guidance

The Equality Act Explanatory Notes at para 314-316 (legislation.gov.uk), 2010, explain that the defence in s.94(2) EqA ensures “the Act does not inhibit the ability of institutions in the higher and further education sectors to include a full range of issues, ideas and materials in their syllabus and to expose students to thoughts and ideas of all kinds.” However the Notes say that the “way in which the curriculum is taught” is still subject to the EqA, “so as to ensure issues are taught in a way which does not subject students to discrimination or harassment”. The Notes explain that the defence is based on a previous exception for schools as regards religion or belief, and explicitly extends the exception to education in higher and further education institutions across all protected characteristics. The Explanatory Notes give two examples:

  • “A college course includes a module on feminism. This would not be discrimination against a male student.
  • A university requires students to use a computer for projects or essays. This would not be indirect discrimination against a member of a sect which rejects the use of modern technology.”

The 2014 Technical guidance, at para 8.22 and 10.27, also says that s.94(2) EqA means “further and higher education institutions are not restricted in the range of issues, ideas and materials they use and have the academic freedom to expose students to a range of thoughts and ideas, however controversial. Even if the content of the curriculum causes offence to students with certain protected characteristics, this will not make it unlawful unless it is delivered in a way which results in harassment or subjects students to discrimination or other detriment.” The Technical guidance gives some examples:

  • “A male student registers on a course in gender studies but finds he is outraged by the extent to which the set books and the issues addressed focus on feminist arguments which he feels are outdated and demeaning to him as a man. He will not be able to bring a claim of sex-related harassment based on the course content.” (para 8.22)
  • “A college science department teaches evolution, which would not be discrimination because of religion or belief against a student whose religious beliefs include creationism.” (para 10.27)
  • “A college English department teaches The Merchant of Venice. This would not be unlawful race or religion or belief discrimination even though the play itself could be viewed as being hostile towards Jewish people.” (para 10.27)
  • “In the above example, while teaching The Merchant of Venice, a lecturer says that Jewish people are unethical moneylenders who only have themselves to blame for the resentment they experience. This could amount to unlawful racial or religious discrimination or harassment because the comments would be related to how the education is delivered, not the content of the curriculum.” (para 10.27)

Curriculum defence: Cases

So far as I’m aware, there has been no court decision in which a university has successfully relied on the curriculum defence against a disabled person who had difficulty meeting a requirement due to their disability. However in one case Bristol University said it intended to argue this point if the case went to a higher court:

University of Bristol v Abrahart, High Court, 2024
This tragic case involved a physics student with depression and social anxiety disorder. The university continued to seek to use oral interviews to assess her, even though she failed to attend most of them. This continued after the university knew she had a mental health problem connected to the interviews. She committed suicide in her flat on the day when the university wanted her to be part of a group giving an oral conference presentation. The County Court in 2022 – upheld by the High Court in 2024 – held the university to be liable under the EqA.

Was this discrimination claim excluded by the curriculum defence in s.94(2)? The unversity initially argued in the County Court that the defence did apply, but then accepted it could not argue the point in the County Court as the latter was bound by the High Court decision in Birmingham City Council v Afsar (below). However, the university’s barrister wished to record that he did not agree with the Asfar decision and would challenge the point if the case found its way to a higher court. The point was not mentioned though in the subsequent High Court decision on Abrahart. See further University of Bristol v Abrahart>Curriculum defence.

Given the County Court in Abrahart found that oral testing was not required by a “competence standard” in this case, it might well also have found that oral testing was not part of the “curriculum”.

The High Court decision mentioned in the Abrahart County Court decision:

Birmingham City Council v Asfar, (bailii.org) High Court, 2019
The Council sought an injunction restricting street protests against a school which was said to be teaching “LGBT issues” to under 11s. Parents and others said the lessons were contrary to Islam. One issue was whether the school was in breach of the EqA. The High Court held it was not in breach, because the curriculum defence (s. 89(2) EqA for schools) applied.

The court rejected an argument by the protesters that “curriculum” was limited to the national curriculum [§47-50]. The court said there was no rational ground for such a policy, and in principle there was a clear distinction between the content of the curriculum at a school, and “the way it provides education” [§48]. Also an example on The Taming of the Shrew at para 303 of the Explanatory Notes (legislation.gov.uk) indicated, rightly in the court’s judgment, that a decision to use a particular text as part of a programme of instruction was likely to be something done in relation to “curriculum content” [§49]. (The protesters objected particularly to the school’s use of certain books.)

The purpose of the curriculum exemption, said the High Court, was to enable a school to teach controversial material without being accused of contravening the EqA. The Explanatory Notes made this clear [§50].

External examining bodies: Is the university etc also liable?

In some cases, a professional body or other external examining/awarding body is involved. The examining body is itself likely to be bound by the EqA. For example:

What about liability of the university or FE college etc if it is not the body setting the exams? The education provider is only liable for acts and omissions of itself (including staff) and its agents, not for those of an independent examining body: see University and FE: the rules>Who is liable? Also vice versa as regards liability of the examining body. Accordingly the legal preconditions for liability need to apply to the particular body one seeks to make liable, as in Work placements related to education courses>Liability of each body should be considered separately which includes a case example. For example (unless the claim is for being an agent of or aiding or inducing etc discrimination by another body) is there a provision, criterion or practice (PCP) applied by or on behalf of that body (EqA s.20(3) with Sch 13 para 3) which puts disabled people at a disadvantage, and is it reasonable for that body to have to make the adjustment. The duty to provide an auxiliary aid or service is potentially wider in that there is no need for a PCP of the relevant body, but it still needs to be reasonable for that body to have to provide the auxiliary aid or service.

At least if an exam is physically run by the education provider such as a university, it will doubtless have some obligations even where an external examining body is involved. However these obligations will probably be more limited than would apply to a normal university exam. Where relevant, or if in doubt, it may be prudent for a student to ensure that any external examining body is aware of their disability and needs, including ways in which they may be put at a disadvantage and any particular adjustments they want.

Where both a professional exam body and a university (or FE college) are involved, there may be the undesirable situation of claims in respect of the same exam having to go to two different courts. A claim against the professional exam body normally goes to the employment (or other specialist) tribunal, while claims against the university go to the County Court (sheriff court in Scotland), unless for example one body aided/induced discrimination by the other, or acted as its agent. A similar issue can arise with university work placements: Work placements related to education courses>Which court? where it was discussed in the Blackwood case.

Two bodies involved: Old Codes of Practice

Some examples from the old Codes of Practice are quoted below, but are unreliable. In particular, students should not assume that the university or FE college where they study is responsible for arranging adjustments with the examining body – students may need to take the initiative themselves with the examining body.

From the 2007 Code of Practice (above) which related to the Disability Discrimination Act 1995 (DDA):

9.29 Where the qualification is being conferred by another body, such as a professional body awarding a professional or trade qualification, or a general qualifications body awarding a general qualification [eg GCSEs, A-levels], it is advisable for education providers to set up systems for working with such qualifications bodies. The education provider is likely to have a crucial role in ensuring that such qualifications bodies obtain the information that they need to make adjustments for disabled students who are taking examinations or other assessments.

[Example:] A partially sighted man on a course has always had course information provided to him in large print by the college as a reasonable adjustment…., and he has used a desk light when taking internal tests as part of his course. With the man’s consent, the college informs the qualifications body that he needs an examination paper in large print for examinations set by this body. The college provides him with a desk light for such examinations.

From the previous 2002 Code of Practice on post-16 education:

EXAMPLE 3.8A
A student at a further education college is studying for GCSEs. Modifications to the delivery of the examination have to be agreed by the examination board. The college has responsibility for finding out what modifications the student may need, for requesting these of the examination board and for making any adjustment needed to the administration of the examination in the college. The college is not responsible for deciding whether modificiations are acceptable nor for any changes to the examinations themselves, which are not covered by Part 4 of the [DDA 1995].

Examination and assessment examples in guidance

Technical guidance, 2014

From the ERHC’s Technical Guidance on Further and Higher Education, 2014:

Example: A law student has severe arthritis in her hands. When assessing her level of knowledge, it might be a reasonable adjustment to provide an oral exam or viva instead of a timed handwritten exam. However, there may be an overlap between a competence standard and any process by which an individual is assessed against that standard.
Para 7.38

Example: A woman taking a written test for a qualification in office administration asks the education provider for extra time for the test because she has dyslexia. This is likely to be a reasonable adjustment for the education provider to make. She also asks if she can leave out the questions asking her to write a business letter and to précis a document, because she feels that these questions would substantially disadvantage her because of her dyslexia. The education provider would not have to make this adjustment because these questions are there to determine her competence at writing and précising, so are part of the competence standard being tested.
Para 7.38

Example: A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This a reasonable adjustment for the university to make.
Para 10.23. There was an almost idential example in para 8.31 (below) of the 2007 Code.

However, also at para 10.23, the Technical guidance says a university would not have to adjust a requirement for applicants to a degree in music performance to play a musical instrument to Grade 8 or equivalent standard, as this is a competence standard.

Old 2007 Code of Practice

The following examples are from the 2007 Code of Practice: Post-16 Education (pdf, dera.ioe.ac.uk) on the DDA 1995. See above Official guidance on this Code.

A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period.
Para 5.74

Note: Even if time limits are a competence standard, the university would still have to justify them under ss.15 and 19 EqA, bearing in mind their discriminatory effect. See further below Competence standards: Time limits.

The entrance requirements for a GCSE French course state that applicants ‘must be able to speak clearly’. This requirement could unjustifiably exclude some people whose impairments result in a significant effect on their speech.
Para 8.7

An adult education college states that it requires a level of English language fluency for entrance onto its courses and specifies a particular test of language fluency that it will accept. An applicant with a speech impairment found that this particular test did not allow for additional time to be given, and as a result she scored much lower than she should have done on the test. The college would be unable to justify rejecting her for not having the required test result if she could show through an alternative test that she had the relevant level of fluency required.
Para 8.12

A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This is likely to be a reasonable adjustment.
Para 8.31

A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is ‘speaking clearly in a customer services environment’. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful.”
Para 9.19. The 2007 Code gives this example in the context of direct discrimination. See my comment on it above under “Direct discrimination (s.13)?”.

Slow writer not being allowed twice as long for a shorthand test, as speed is likely to be a competence standard for shorthand.
Para 9.24

Possible additional exam time for student with dyslexia.
Para 9.31

Viva for deaf student – sign language interpreter and additional time as reasonable adjustments.
Para 9.34

Technical note: Competence standards (exception to reasonable adjustment duty)

Competence standards: Relevance

Generally universities have a reasonable adjustment duty if a provision, criterion or practice (PCP) applied by the university puts students with a particular kind of disability at a more than minor or trivial disadvantage: above Reasonable adjustments: anticipatory duty. Similarly if a disabled non-student (above) taking a qualification is put at a disadvantage. However EqA Sch 13 para 4(2)(3) says this duty does not apply if the PCP is the application of a competence standard.

This means that the reasonable adjustment duty cannot alter what competence standard is being assessed, but can still apply to how the competence standard is assessed, ie the process by which it is assessed (Technical guidance para 7.38, and Abrahart case below). A competence standard might include a university’s learning objectives and/or assessment criteria, for example, though some of these may not necessarily be “competence standards”: see below What is a competence standard?

So if the competence standards being assessed are not specifically oral skills, it may well be a reasonable adjustment for the student to do a written rather than oral assessment, if the student wishes. (Even if competence standards are specifically oral, there is still the question whether the university can justify assessing them (above) under ss.15 and 19 EqA). The Technical guidance gives an example of a reasonable adjustment the other way round, namely allowing an oral format where the exam would normally be written:

Example: A law student has severe arthritis in her hands. When assessing her level of knowledge, it might be a reasonable adjustment to provide an oral exam or viva instead of a timed handwritten exam. However, there may be an overlap between a competence standard and any process by which an individual is assessed against that standard.
Para 7.38 Technical guidance, 2014

Example: A woman taking a written test for a qualification in office administration asks the education provider for extra time for the test because she has dyslexia. This is likely to be a reasonable adjustment for the education provider to make. She also asks if she can leave out the questions asking her to write a business letter and to précis a document, because she feels that these questions would substantially disadvantage her because of her dyslexia. The education provider would not have to make this adjustment because these questions are there to determine her competence at writing and précising, so are part of the competence standard being tested.
Para 7.38 of the 2014 Technical guidance.

Both those examples point out that there may be an overlap between competence standard and process. Sometimes the process of assessing whether a competence standard has been achieved and the standard itself are inextricably linked. For instance, ability to speak French cannot be tested in writing. Below Process inextricably linked with competence standard.

In any event, the most important point to understand is that even where the reasonable adjustment duty is excluded by Sch 13 para 4(2) because something is a competence standard, a disabled student can rely on rights under ss.15 and 19 EqA (above) as these have no exception for the university’s competence standards. See above Don’t think only of reasonable adjustments and Key points on justification under ss.15 and 19.

What is a competence standard?

A competence standard is defined as “an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”. (EqA Sch 13 para 4(3)). This definition is discussed at para 7.33-7.38 in the 2014 Technical guidance, and from para 5.71 in the 2007 Code.

A competence standard might include a university’s learning objectives and/or assessment criteria, for example, though not all of these will necessarily be “competence standards”. There is little case law to show how the courts will apply the legal definition in practice.

A rare court decision on competence standards in relation to oral assessment by a university is University of Bristol v Abrahart (below). I deal with that first, but other important points below that include:

Competence standards in Abrahart case

Here the High Court upheld a County Court decision that, on the facts, the university’s competence standard did not require oral assessments of a physics student.

University of Bristol v Abrahart, High Court, 2024
This tragic case involved a physics student, Natasha, with depression and social anxiety disorder. The university continued to seek to use oral interviews (after laboratory experiments) to assess her, even though she failed to attend most of them. This continued after the university knew she had a mental health problem connected to the interviews. Natasha was found dead in her flat on the day when the university wanted her to be part of a group giving an oral conference presentation. She committed suicide in her flat on the day when the university wanted her to be part of a group giving an oral conference presentation. The High Court upheld the County Court’s decision that the university was liable under the EqA.

Among other things, the university argued that assessing the student’s ability to explain and defend her work orally in this course module, Practical Physics 203, was a “competence” standard, as this was a core competency of a professional physicist. The result would be that the reasonable adjustment duty could not alter the fact that assessments must be oral. However, the County Court, upheld by the High Court, decided that on the facts this was not a competence standard. For example, in the university’s documentation mapping course learning outcomes to mandatory units, there was no Intended Learning Outcome (ILO) in the case of this module which referred to oral communication skills. Also the marking scheme for the module did not award marks for this competency, and a staff member had testified that a student was required to speak critically of their own work, and this required communication, but not necessarily in an oral way.

I set out at some length at University of Bristol v Abrahart>Competence standards in this case (High Court) the parties’ arguments, and what the High Court said in upholding the decision that this was not a competence standard, as it shows how the courts may approach decisions on what is a competence standard. One thing that was important was the university’s internal documentation. Universities may now be more careful what their documentation says about competent standards. (Even if something is a competence standard, it may still be a claim under ss.15 and 19 EqA, above Don’t think only of reasonable adjustments.)

Process inextricably linked with competence standard

Para 7.36 of the 2014 Technical guidance says that sometimes the process of assessing whether a competence standard has been achieved is inextricably linked to the standard itself. “The passing of an assessment may be conditional upon having a practical skill or ability which must be demonstrated by completing a practical test. Therefore, in relatively rare circumstances, the ability to take the test may itself amount to a competence standard.”

However, the High Court in Abrahart criticised the statement that the “ability to take the test may itself amount to a competence standard”: see below Abrahart case on process inextricably linked with competence standard.

The Technical guidance gives the example of an assessment for a practical car maintenance course which cannot be done simply as a written test. An obvious speech example is that oral ability to speak a foreign language can only be tested orally, not by a written test. Another example:

Example: A woman taking a written test for a qualification in office administration asks the education provider for extra time for the test because she has dyslexia. This is likely to be a reasonable adjustment for the education provider to make. She also asks if she can leave out the questions asking her to write a business letter and to précis a document, because she feels that these questions would substantially disadvantage her because of her dyslexia. The education provider would not have to make this adjustment because these questions are there to determine her competence at writing and précising, so are part of the competence standard being tested.
Para 7.38 Technical guidance

This issue of the process being bound up with a competence standard may sometimes be relevant for Time limits (below).

Abrahart case on process inextricably linked with competence standard

The High Court in Abrahart, above felt one should approach with caution the statement (above) in the EHRC Technical Guidance that in relatively rare circumstances, the ability to take the test may itself amount to a competence standard.

For example, said the court, a test of whether someone could change a car wheel would not simply assess whether they could do it all, but would involve standards or criteria which measure whether the task is deemed to have been completed. Those standards of competence could not be adjusted, but the practical test (which was the method of assessing whether the examinee has the required level of competence) could be adjusted. The standards of competence could not be measured without the examinee actually changing the wheel. However, it was important to keep in sharp focus the limits of the Sch 13 para 4(3) “exclusion zone”, so as to avoid results contrary to the inclusive purpose of the disability discrimination legislation. “The legislation allows for a common sense solution in the examples which I have given thus far, namely that it would not be a reasonable step for the requirement for the practical test to be dispensed with altogether. But, depending on what is being measured, it may be reasonable for the format of the practical test to be adjusted.” [§180-184]

A French oral test was another example considered by the court. If what was being measured was simply the ability of the candidate physically to speak in French then the competency standard and the method of assessment would be one and the same. But if what was sought to be measured was a person’s fluency in oral French, the oral exam would be a method of assessment and the competence standard would be the criteria for assessing levels of fluency. If the ability to communicate face-to-face in French was being tested, the court outlined possible reasonable adjustments which might be considered (subject to reasonableness), such as sign language for a deaf student, providing questions in advance of the oral exam, or adjustments to where it took place, or to the number of people were present etc. [§185]
(Note: “Fluency” is an ambiguous term. And even if reasonable adjustments were excluded, there would be the issue of whether whatever competence standards are being are justified under ss.15 and 19 EqA: above Don’t think only of reasonable adjustments.)

The High Court thought it important, where these types of issue arise in relation to a given assessment or examination, to identify on the evidence:

  • what competence or ability is being measured?
  • what are the standards which are being applied to determine whether a person has met the relevant level of competence?
  • what aspect of the process are methods of assessment of whether those standards have been met? [§186]

Competence standards: Time limits

The 2007 Code of Practice said:

A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period.
Para 5.74

A judge in Burke v College of Law, 2012, has since indicated that this may not be quite right. The Court of Appeal in that case skirted the issue of how far a time limit can be a competence standard, but a judge indicated that although ability to work under a time constraint was a competence for a solicitor, it did not necessarily follow that sitting the exams under that particular time constraint was a competence standard. Lewison LJ made this point in giving leave to appeal to the Court of Appeal. This comment in the case helps the argument that even if the competence being tested is the ability to do something within a limited time period, the particular time limit imposed in the exam may not be a competence standard. (That case was on professional exam bodies, but there is the same exclusion of competence standards from the reasonable adjustment duty.)

The High Court in Abrahart, above discussed time limits to some extent, saying for example that if if the purpose of a practical test of changing a wheel was also to assess whether the wheel could be changed at speed then the time allocated for the performance of this task would be an additional standard by which this competence was measured [§183]. However time limits were not relevant in that case, and the court did not discuss the nuances in Burke above.

The Technical guidance and (old) Code of Practice give various examples of allowing extra time for exams by way of reasonable adjustment: above Examination and assessment examples.

In any event, even where the reasonable adjustment duty is excluded by Sch 13 para 4(2)(3) because the time limit is a competence standard, a disabled student can rely on rights under ss.15 and 19 EqA (above) as these have no exception for the university’s competence standards. See above Don’t think only of reasonable adjustments and Key points on justification under ss.15 and 19.

A university refuses a student who stammers extra time in her oral assessment, saying the time limit is a competence standard and so cannot be adjusted. Even if the court agrees there is no reasonable adjustment claim, if the lack of extra time results in the student being marked down – eg she could not say enough – she is likely to be able to claim discrimination arising from disability (s.15) provided the university had actual or constructive knowledge of the disability. The university would have a defence if it showed its unfavourable treatment (marking down) was sufficiently justified (above). However it is difficult to imagine a situation where this would be justified – except perhaps rare professional contexts like training simultaneous interpreters. (She could also have a claim for indirect discrimination, unless the university shows the time limit is justified.)

Time limits are discussed in the context of professional exam bodies at Professional exams>Time limits.

Is reasonable adjustment duty excluded by an unlawful competence standard?

What if the court finds that applying a particular competence standard is unlawful indirect discrimination (above) under s.19 EqA, because it is not sufficiently justified? Does the competence standard still exclude or limit the reasonable adjustment duty? This is not clear. However I think there is a real possibility that a court would find the competence standard does not exclude or limit reasonable adjustments so far as it is unlawful indirect discrimination. (I think the argument is less strong where there is only discrimination arising from disability (s.15), because technically the focus under s.15 is on the individual circumstances rather than whether the competence standard itself is justified.)

Also the 2007 Code said at para 9.19 that a competence standard which results in direct discrimination is not a genuine competence standard and education providers who apply such standards will be acting unlawfully. See above under Direct discrimination (s.13)? which includes a speech example where this could apply. However the point is not mentioned in the 2014 Technical Guidance.

Does the standard need to be “relevant”?

The 2014 Technical guidance (para 7.34) says that a requirement is only a competence standard “if its purpose is to demonstrate a particular level of a relevant competence or ability such as a requirement that a person has a particular level of relevant knowledge of a subject”. So the guidance seems to read the word “relevant” into the statutory definition.

Therefore para 7.34 says that, for example, a requirement to demonstrate “a high level of physical fitness” is unlikely to be a competence standard for admission to a choreography course which is predominately theory-based and does not involve any strenuous physical activity. But, it continues, a requirement for students studying for a law degree to demonstrate a particular standard of knowledge of certain areas of law in order to obtain the degree is a competence standard.

I am not aware of any case law on this. However even if one does not read “relevant” into the definition, an institution is likely to find it very difficult justify that physical fitness requirement for this type of course on a claim under s.15 and 19 EqA, which apply even if it is a “competence standard”.

The examples given in the Technical guidance relate to admission criteria rather than exams during or at the end of the course. Perhaps the guidance sees “relevance” as applying mainly to admission criteria, since one can assess whether the competence standards are relevant for the course. For other exams there might be the question: relevant to what?

Competence standards: Admission criteria

These rules on competence standards above also apply to criteria for admission to a course. Briefly, so far as the admission criteria are “competence standards” the reasonable adjustment duty does not apply to them. But the process of assessing them is subject to reasonable adjustments. And even where the reasonable adjustment duty is excluded, a disabled student can rely on rights under ss.15 and 19 EqA (above) as these have no exception for the university’s competence standards. See above Don’t think only of reasonable adjustments and Key points on justification under ss.15 and 19.

See above Does the standard need to be “relevant”? for particular examples on admissions in the Technical guidance, 2014.

Generally, including unnecessary or marginal requirements for entry to a course can lead to discrimination. Para 8.7 (above) of the 2007 Code gave the example of a requirement to be able to speak clearly.

See also the example on English language fluency at para 8.12 (above) of the 2007 Code.

Technical note: Justification under ss.15 and 19 EqA

Generally

A university has a defence to a s.15 claim (above) if it shows that treating the person unfavourably – such as marking them down – as a result of something arising from the person’s disability was a proportionate means of achieving a legitimate aim (justification). It is for the university to prove this.

Whether this justification defence succeeds involves a balancing exercise by the County Court, if the claim goes to court: Objective justification defence>Balancing exercise. The court would consider particularly how important the university’s aim was, could it have been achieved by alternative less discriminatory means, and did the aim outweigh the discriminatory effect on the disabled claimant.

If the unfavourable treatment is mandated by a competence standard, the court’s focus may perhaps be on whether the competence standard generally is justified, rather than whether its application to the particular individual is justified: below Can s.15 justification test require exceptions to a competence standard?

The justification defence to a s.19 claim above, for indirect discrimination, is similar, except that here it is clearer that the university must justify the provision, criterion or practice (PCP) which has the discriminatory effect, such as the competence standard or assessment criteria generally, rather than the unfavourable treatment of the individual. So the university must show that the PCP is a proportionate means of achieving a legitimate aim. The s.19 test may be easier for the university to meet than the s.15 test, as suggested by the High Court in University of Bristol v Abrahart>Justifying indirect discrimination generally.

Even if, under s.15 or s.19, the court is considering whether a competence standard itself is justified, rather than focusing on the unfavourable treatment of the individual claimant, the court would presumably weigh in the balance the competence standard’s effects on people with relevant disabilities (perhaps including potentially devastating effects as in Abrahart, below), whether the university’s aims outweigh those effects, and whether – in designing the standard – proportionate steps have been taken to mitigate the effects.

This may all be subject to the Curriculum defence (above), but I would argue that does not apply where someone has difficulty with an assessment due to their disability.

For further points, see above Brief points on justification under ss.15 and 19.

How the Abrahart case may help

When considering different kinds of disability, stammering is often forgotten. However, an advantage (if that’s the right word for something so tragic) of the Abrahart case is that it must have greatly raised awareness in universities of how oral assessments can create a barrier for students with some disabilities.

That case, involving a suicide, may also help in arguing that the fact some students have difficulty in doing oral assessments should be seen as a serious issue, weighing heavily in the balance when a court considers whether oral competence standards/assessments are justified (under s.15 or s.19). See below Is the devastating effect of oral assessments in Abrahart legally relevant in a stammering case?

Is the devastating effect of oral assessments in Abrahart legally relevant in a stammering case?

Whatever the legal arguments, the Abrahart case, in which oral assessments contributed to a student with mental health issues committing suicide, may well make courts more willing to view oral assessments more critically than they might have done in the past.

However legally, is that devastating effect of an oral assessment in Abrahart something for a court to weigh in the balance when considering whether it a university is justified in insisting on oral assessment in the case of a claimant who stammers (even if that claimant is not particularly at risk of suicide)?

Indirect discrimination (s.19)

In considering for indirect discrimination (above) whether a provision, criterion on practice (PCP) – such as a particular competence standard – is justified, the court may well balance the aims of the PCP against the detriment to the protected group, namely people with the same disability as the claimant: Objective justification defence>Indirect discrimination.

How to decide what the particular disability is, though, is unclear: Indirect discrimination>”Same” disability. It could be people with, say, a speech impairment in a narrow sense. Or might it be people whose disability affects their ability to speak? – in which case it might include people with mental health conditions like Natasha in the Abrahart case. If the latter, the risk of a student committing suicide if the university insists on oral assessment should weigh more heavily in the balance, as a possible detriment.

Discrimination arising from disability (s.15)

The normal position is that for justification under s.15 (above), the court focuses on the individual circumstances. However, as I discuss below (Can s.15 justification test require exceptions to a competence standard?), in considering whether a competence standard is justified, the court may focus on the competence standard generally rather than the circumstances of the particular claimant.

This seems to lead to a justification test which has much in common with the s.19 test above, but without the technical limitations imposed by the wording of s.19. In particular, unlike with s.19, the EqA does not say that it is the detriment to people with the same disability as the claimant that the court must weigh in the balance. A claimant might well argue, therefore, that if the university is arguing that it needs to apply the same competence standard to everyone, and that this competence standard is justified, the university should not be able to say that detriments to students with other kinds of disability are irrelevant. If this argument of a claimant succeeds, the possible extreme detriment to people like Natasha in the Abrahart case should presumably be weighed in the balance by the court.

Reasonable adjustments

There is authority that whether there is a substantial disadvantage, and (more importantly here) what steps it is reasonable to have to take to avoid it, are decided by reference to “disabled people generally”, which the courts have interpreted as people with the same kind of disability (so a “group” approach): see Reasonable adjustments by service providers: rules>Two-stage legal test. However the position is unclear, for example in Abrahart the courts seem to have taken an individual rather than a group approach.

If one adopts the group approach, then the position seems similar to s.19 above. So if “same kind of disability” is understood widely, the group (whose detriments are relevant in deciding what is “reasonable”) might include people with mental health conditions like Natasha in the Abrahart case

(However, a reasonable adjustments claim cannot require a competence standard to be adjusted (above)).

Dominic Barker

Stammering too can lead to suicide. Dominic Barker committed suicide in 1994 due to his stammer. He had two degrees but people focused on his stammer and not his ability: New research to help stammering (bbc.co.uk), 2006. In his memory the Dominic Barker Trust was set up.

Also someone who stammers may also have a mental health condition, which would potentially be a disability within the EqA.

Can s.15 justification test require exceptions to a competence standard?

The issue

In a s.15 EqA claim against unfavourable treatment due to the application of a competence standard, can the objective justification test require exceptions to a competence standard, based on the circumstances of the particular case?

For indirect discrimination under s.19 EqA, there is authority that it is the provision, criterion or practice (PCP) – eg the application of that competence standard – as a whole which must be justified. So it is not a question of whether an exception should have been made for the claimant. Furthermore, in its balancing exercise the court considers the detriment to the protected group as a whole, eg people with that type of disability. See my page Group test for objective justification of indirect discrimination?

However, under s.15 EqA (discrimination arising from disability), the objective justification test operates on an individual basis. The court looks at the discriminatory effect on the individual claimant, and balances the considerations applicable to that individual. This includes looking at whether exceptions or adjustments should have been made for that individual. (The court in Abrahart, below considered the approach to be similar for the reasonable adjustment duty, but that is unclear.)

So one would think that exceptions to a competence standard could be claimed under s.15. Technically, that could be so even tbough, due to a specific exclusion, the reasonable adjustment duty cannot require a competence standard to be adjusted (above). Indeed the County Court in Koci v University College London, 2014, a case on admission to a course, considered s.15 to be wider than the reasonable adjustment duty. But arguably (and as argued by UCL in Koci), allowing exceptions from a competence standard under s.15 would be effectively claiming a reasonable adjustment to the competence standard “by the back door”, circumventing the exclusion of reasonable adjustments.

Abrahart case on exceptions to competence standard

In pointing out that the exception for competence standards (above) applies only to the reasonable adjustment duty, the High Court in University of Bristol v Abrahart said:

173. … There can be no requirement to make adjustments or exceptions to a competence standard based on the circumstances of a particular case, but this does not mean that the question whether such a standard should be applied by a given educational institution in assessing levels of competence or ability is beyond the reach of the law. If a competence standard operates in a way which is indirectly discriminatory, an education institution will be required to show that it is a proportionate means of achieving a legitimate aim: see section 19 of the 2010 Act. ..

This comment – that there can be no requirement to make adjustments or exceptions to a competence standard based on the circumstances of a particular case – fits with the justification test under s.19. However what of a s.15 claim? The High Court describes elsewhere in its judgment how the justification test under s.15 – like reasonable adjustments (? see below) – includes the issue of whether an exception should have been made in the individual case: University of Bristol v Abrahart>Justifying indirect discrimination generally and University of Bristol v Abrahart>Objective justification under s.15. Under the s.15 justification test, making exceptions is based on question 3 in that last link, rather than whether the reasonable adjustment duty technically applies.

In Abrahart itself, the university was held liable under s.15 (as well as s.19), and also for failure to make reasonable adjustments. The reasonable adjustment duty was held to apply as the adjustments sought were consistent with the university’s competence standards. So in Abrahart the issue of exceptions to a competence standard under s.15 did not arise. Perhaps therefore one shouldn’t read too much into para 173. However, I think the issue is likely to arise in future cases.

Note on whether reasonable adjustment duty focuses on individual:
The High Court in Abrahart perhaps implies that the reasonable adjustment duty on universities focuses on the individual student. However, there is at least a “group” aspect to the test: see Reasonable adjustments by service providers: rules>Two-stage legal test, which also links to discussion of ad hoc duties.

Cases on compulsory retirement age

An analogy the courts may consider is justification of a compulsory retirement age, where one is set by an employer, in a claim for direct age discrimination. Here, on the face of it, and like under s.15 EqA, it is the less favourable treatment of the individual (dismissal on reaching a certain retirement age) that has to be justified. However, Lady Hale in the Supreme Court in Seldon v Clarkson Wright and Jakes (bailii.org), 2012, considered “whether the measure [ie the employer specifying a compulsory retirement age] has to be justified, not only in general but also in its application to the particular individual”. She said:

64. The answer given in the EAT, at [58], with which the Court of Appeal agreed, at [36], was that:

“Typically, legitimate aims can only be achieved by the application of general rules or policies. The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification. It is what gives predictability and consistency, itself an important virtue.”

Thus the EAT would not rule out the possibility that there may be cases where the particular application of the rule has to be justified, but they suspected that these would be extremely rare.

65. I would accept that where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it. ….

Citing an EU case, the EAT in Pitcher v University of Oxford (bailii.org), 2021 (at para 105), added to Lady Hale’s comment that a blanket policy that takes insufficient account of different employee circumstances might fall to be treated as disproportionate. The EAT in that case evidently went on the basis that the issue of detriment had to be viewed in general terms – justification relating to the compulsory retirement policy, not individual examples of its application (para 186), Even so, the EAT held that two different tribunals were entitled to reach different conclusions on whether the compulsory retirements of two particular individuals under the same retirement policy (that of the University of Oxford) were justified. In the case of one individual, an employment tribunal had upheld his age discrimination claim. In the case of the other, a different employment tribunal had rejected his claim. The EAT said the employment tribunals had each received different evidence, and were entitled to give different weight to the mitigating factors relied on. Both decisions were upheld.

How might competence standards be treated?

Ultimately we will need to see what the courts decide on competence standards, where it matters on the facts. (Koci v University College London, 2014, is interesting on this, but was only a County Court decision).

However, how might competence standards be viewed in the light of those decisions on compulsory retirement age? The need to have some generally applicable competence standard in an exam is likely to be much easier to justify than the need felt by an employer to impose a compulsory retirement age. A university may well argue that the existence of some competence standard should be seen as justified, so that even under s.15 exceptions would not be justified, or only exceptionally.

However, that leaves the key question of whether the particular competence standard is justified, ie a proportionate means of achieving a legitimate aim. The fact that having some kind of competence standard is likely to be justified perhaps puts a greater onus on the university to show that the particular competence standard it chooses is really proportionate, given the different kinds of disability that students may have. The EAT in Pitcher above said that a blanket policy that takes insufficient account of different individuals’ circumstances might fall to be treated as disproportionate. Stammering often seems to be forgotten about, but the Abrahart case should help remind universities, and persuade courts, of how oral assessments can create serious barriers: above How the Abarhart case may help

Also Pitcher illustrates that even if the issue is whether a competence standard is justified generally, two different courts would be entitled to reach different conclusions in the cases of different claimants. Each court will take into account the evidence put to it, so the more cogent the evidence is of a serious discriminatory effect relating to disability (which presumably might relate to others as well as the claimant), the harder it should be for the university to justify the standard.

Finally, even if it is mainly the competence standard rather than its application to the particular claimant that must be justified, this does not necessarily mean the s.15 test is identical to s.19. For example, technical issues of correct comparators under s.19 would not necessarily apply to s.15: see above Is the devastating effect of oral assessments in Abrahart legally relevant in a stammering case?

University should provide evidence to support justification

The 2014 Technical guidance (paragraphs 5.25 and 6.12) stresses that the education provider must produce evidence to support its assertion that the unfavourable treatment or PCP is justified, and must not rely on mere generalisations.

Relevance of Public Sector Equality Duty?

Para 5.35 of the Technical guidance says that a significant factor in determining whether a public authority (including all non-private further and higher education institutions) is able to show justification is the extent to which the authority has complied with its Public Sector Equality Duty. For example, has it considered disability issues in setting assessment criteria and learning objectives?

There again, there is case authority that in assessing justification a court must ultimately consider the outcome rather than the procedure through which the outcome came about.

Technical note: Is the reasonable adjustment duty “anticipatory” as regards exams?

Summary and conclusion

Where the reasonable adjustment duty is anticipatory, universities etc should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself: Reasonable adjustments on service providers>”Anticipatory” duty.

Guidance from the Equality and Human Rights Commission (EHRC) seems to say that yes the duty towards students is anticipatory as regards exams. But if the exam candidate is not a student of the university, the duty is not anticipatory but is focused on the individual: above Reasonable adjustments: non-students. It can be argued that this view is supported by the history of the legislation. It is the view I adopt generally on this website

However the position as regards students is not clear. Other possible interpretations are:

  • the reasonable adjustment duty for conferment of qualifications on students (like non-students) is individual, not anticipatory, or
  • possibly(?), the university etc owes both types of duty to a student, so the claimant can choose whichever they prefer.

It is important to be clear that the reasonable adjustment duty does apply to universities as regards exams, both for students and non-students. It is just a matter of which technical type of duty applies for students.

Given uncertainties on ad hoc adjustments where the anticipatory duty applies, a student wanting an ad hoc adjustment may sometimes find it advantageous to argue that they can claim under the individual rather than the anticipatory version of the duty. This would probably be an alternative argument, in addition to claiming under the anticipatory duty.

Anticipatory versus individual duty

An “anticipatory” reasonable adjustment duty is technically where the legislation says that disabled people generally – actually meaning those with a particular kind of disability – are put at a substantial disadvantage by the provision, criterion or practice. (The DDA 1995 omitted the word “generally” but still referred to “disabled persons” in the plural.) The reasonable adjustment duty on service providers is anticipatory in this way, so service providers should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself. But the reasonable adjustment duty on employers is not anticipatory, because there the legislation says that the particular disabled employee (or job applicant) must be at a substantial disadvantage.

For the reasonable adjustment duty on universities, s.20 EqA as amended by EqA Sch 13 paras 3 and 4 provides that the following must be put at a substantial disadvantage:

  • “disabled students generally” (anticipatory duty wording) as regards “access to a benefit, facility or service”
  • “an interested disabled person” (non-anticipatory wording), defined as a “person who is, or has notified [the university] that the person may be, an applicant for the conferment of the qualification”, as regards deciding on whom a qualification is conferred.

Does “benefit, facility or service” include exams/assessments? On the face of it, yes. The wording “benefit, facility or service” seems wide enough to include exams and qualifications. This would mean that the reasonable adjustment duty towards students is anticipatory for exams/assessments, and the duty towards non-students is not (though could students also choose to claim under the non-anticipatory duty?). It could perhaps be argued that the express wording on “qualifications” implies that qualifications even for students are intended to be covered only by the “qualifications” wording (individual rather than anticipatory duty) and not as a “benefit, facility or service”. However the history of these provisions supports the view that the duty towards students is intended to be anticipatory even as regards qualifications:

History

In summary, up to 2006 the statutory Code of Practice said the general anticipatory reasonable adjustment duty owed to students included exams and assessments. In 2006 the DDA 1995 was amended to add a non-anticipatory (ie individual-based) reasonable adjustment duty for non-students as regards qualifications, but the revised statutory Code of Practice and now the Technical guidance see students as retaining their anticipatory rights.

  • Under the Disability Discrimination Act 1995 (DDA), before 2006 it was unlawful for a university etc “to discriminate against a disabled student in the student services it provides…” (s.28R(2)). DDA s.28R(11) defined “student services” as “services of any description which are provided wholly or mainly for students”. The relevant statutory Code of Practice said that “student services” included “examinations and assessments”: para 3.14 of the 2002 Code of Practice for providers of Post 16 education and related services (Word doc, archive of drc-gb.org). The reasonable adjustment duty for this was anticipatory (s.28T(1) referring to “disabled persons” and “disabled students” in the plural, and para 5.5 of the 2002 Code).
  • From September 2006, SI 2006/1721 added new provisions to the DDA specifically on discrimination against “a disabled person” as regards conferment of qualifications (s.28R(3A). Unlike the provisions for students in relation to student services, the new reasonable adjustment duty for qualifications was not anticipatory (DDA s.28T(1A)). The 2007 Code of Practice (revised) for providers of post-16 education and related services – from para 10.1 – described these new provisions as applying specifically to non-students. Para 9.5 of the 2007 Code, like the 2002 Code, said that “student services” included “examinations and assessments”. So evidently for students the previous anticipatory reasonable adjustment duty for exams and assessment was intended to continue from 2006.
  • Similarly, under the Equality Act 2010, the 2014 Technical guidance from para 7.83 says that in addition to the anticipatory duty in relation to disabled students, the university has a duty to non-students as regards conferment of qualifications. At para 10.23 this Technical guidance says that examples of a “benefit, facility or service” (relevant only to the anticipatory duty) include “examinations and assessment” and “the conferment of qualifications”. The current EHRC Technical guidance therefore appears to see exams for students as covered by the normal anticipatory duty, and the non-anticipatory duty as being limited to exams for non-students (eg third sentence of para 7.84).

The courts may well take account of this history and read “access to a benefit, facility or service” as including exams and assessments, so that the reasonable adjustment for students is anticipatory. Similarly (but less clearly I think) the non-anticipatory duty – above Reasonable adjustments: non-students – may be limited to non-students. However the legal position on all this is not totally clear.

(In line with the above, Blackstone’s Guide to the Equality Act, 4ed, 2021, suggests at paragraph 6.79 that it is the reasonable adjustment duty as regards conferment of qualifications on non-students which is not anticipatory. See also paragraph 6.68 with footnote 82.)

20th anniversary of stammeringlaw, 1999-2019